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Month: July 2015

Last week, the Supreme Court had a big week. Choosing just one of their opinions – that in Obergfell et al. concerning single-sex marriage, there has been much discussion. Facebook and WhatsApp seem less than ideal forums to discuss this, so here goes.

What did the court decide? It is worth reading the opinion – not as long as it seems at first since most of its length is in Appendices. You can find it here: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

The conclusion is as follows:

“No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a marital union, two people be- come something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right.”

Well put Justice Kennedy. How is another opinion possible? Well, Justice Roberts wrote one. In summary, his dissent said the following: (i) the traditional definition of marriage is not ambiguous: it describes a union between two people of the opposite sex: (ii) each state has defined marriage and eleven states have changed their definition of marriage to include same sex unions – the others have not; (iii) it should not be the role of the Supreme Court (five justices) to expedite the democratic (legislative) process in the other 39 states and redefine marriage at a Federal level by reasoning its way to a constitutional definition of marriage and doing so seriously undermines the evolution of social change through democratic processes.

It s a good argument, presenting itself as reasonable and restrained. And yet…it seems small. Roberts claims we should not hurry the democratic process because doing so risks closing the minds of those whose opinions may evolve over time to accept through the democratic process an idea that, if it is mandated by the Supreme Court, may continue to sit uneasily.

However, in King vs. Burwell, Justice Roberts wrote the majority opinion stating that the wording of the Affordable Care Act concerning the availability of tax credits to subsidize the cost of healthcare insurance should be read broadly in the context of the overall intent of the legislation rather than narrowly based on the simple wording of Section 36B.

For those of you not familiar with the details, they are as follows: the ACA sets out a framework where states should set up healthcare exchanges and, if they do not do so, the Federal government will set up an exchange in that state. The ACA awards tax credits in respect of insurance purchased on an exchange “established by the State”. The petitioners argued that the words should be narrowly construed and tax credits denied to those who had purchased insurance on an exchange established by the Federal government.

The majority concluded as follows:

“Petitioners’ plain-meaning arguments are strong, but the Act’s context and structure compel the conclusion that Section 36B allows tax credits for insurance purchased on any Exchange created under the Act. Those credits are necessary for the Federal Exchanges to function like their State Exchange counterparts, and to avoid the type of calamitous result that Congress plainly meant to avoid.”

So, while Justice Roberts is keen to “round out” the legislative process in this case to give effect to what he believes is the legislative intent, divined from the overall content and structure of the ACA, he is less willing to delve into the constitution and to precedents concerning the evolution of the definition of the institution of marriage as they relate to the constitution to discern the applicability of due process and equal protection to the definition of marriage.

It is tempting to conclude that Justice Robert’s approach in each case may have been informed by the result with which, in each case, he was most comfortable.

Enough about my reading of Supreme Court opinions. How did the General Convention of the Episcopal Church (my church) vote on this matter?

“In resolutions adopted here at the denomination’s General Convention meeting in Salt Lake City this week, the bishops have endorsed new liturgies or services for same-sex couples wishing to marry in church. The bishops also approved changing the church’s canons, or rules, governing marriage, making them gender neutral by substituting the terms “man and woman” with “couple.” However, clergy were also given the right to refuse to perform a same-sex marriage, with the promise they would incur no penalty, while bishops were given the right to refuse to allow the services to take place in their diocese.”

The day before the vote took place, the leader of the worldwide Anglican Communion that includes the Episcopal Church (though, for reasons that should, approaching July 4th, be obvious, does not have ultimate authority over it), Archbishop of Canterbury Justin Welby, released a statement expressing his “deep concern” over the votes and urged the bishops to pull back, writing that the “decision will cause distress for some and have ramifications for the Anglican Communion as a whole, as well as for its ecumenical and interfaith relationships.” Maybe an anticipatory dissenting opinion…

The Supreme Court and the General Convention were moving on parallel but separate paths, but the two events are timely because, in a country that separates church and state (while putting “In God we Trust” on its currency), we need to ask how the two may relate as they filter through to the lives of people of faith.

In a way, the journey of the Episcopal Church and the Supreme Court have followed similar paths and ended up in a very similar place. Until now, the decision of the Bishop in each diocese has determined whether or not same sex marriage may take place in an episcopal parish church. Similar, perhaps, to allowing each state to define marriage. While each priest and Bishop may, as a matter of conscience, decide whether or not he, or she will perform a same sex marriage ceremony, provision must be made for the parishioners to have their union blessed in the church (or another diocese if the Bishop refuses). Similar to a Supreme Court pronouncement.

How does each decision inform the other? Religion and law have been interlinked for a very long time. The Ten Commandments clearly have three – murder, theft and lying – that have found their way into our common law, but it may not be right to describe them as being the foundation of our system of laws. Equally, while churchgoers and clergy are subject to secular laws, the law does not mandate religious doctrine or policy.

It is, however, true that, in compliance with federal law, one may need to put aside one’s objections to certain things: baking a cake for a gay wedding; organizing a gay wedding; photographing a gay wedding. Christian universities enjoying tax-exempt status, may need to rethink their policies or their budgets. Positions will be taken and law suits brought. The courts will wrestle with these issues and we will move forward, learning – hopefully – to conduct our affairs with tolerance and common sense.

Extreme behavior will emerge on both sides of the issue – inevitably. My interest is more in the everyday middle. Will the Supreme Court decision and or the decision of the Episcopal Church cause people who held a religious belief against homosexuality and same sex marriage to change their minds? Will homosexual Christians feel more validated in their lives by these decisions?

I think the answers, respectively, are “Yes, eventually” and “Yes”. My hope is that the fears of Justices Alito and Roberts that the prevailing orthodoxy will now tend to vilify those who remain opposed to same sex marriage will not be justified. It would not, however, be surprising that those whose lifestyles have so far been widely vilified by a previous orthodoxy may enjoy a period of celebration. If public policy is worth making, it is worth enforcing.